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364 SCARF v. JAKDINE.
pleadings in an action, whether founded on contract or tort, show
that injury has been done to a man's personal estate as distinguished
from his person or reputation, the action, in case of the death of
the plaintiff survives to and may be continued by his personal
representative. Under this rule an action to recover money paid
by the plaintiff for shares of a company which he had been induced
to take by the fraudulent representations of the defendant, was held
to survive his death. The English statute of 3 & 4 Wm. IV., c.
42, provides that an action may be maintained against the executors
or administrators of any person deceased " for any wrong committed
in his lifetime to another in respect to his property, real or per-
sonal." The word "wrong" in this statute has been construed to
mean tort, as that word is known in the law. Thus, in Morgan v.
Baney, 6 H. & N. 265, the action was in assumpsit against the
executors of an innkeeper for breach of his implied contract to
keep safely the goods of a guest. It was objected that the law did
not imply a contract under the circumstances, but the court said :
" It is not, however, necessary to determine this, if this plaintiff
elects to amend, which he may do and we think successfully, because
it seems to us, notwithstanding the ingenious argument of Mr. Phinn,
that if the claim against the defendant is for a tort it is for a wrong
committed within the statute." And see Powell v. Bees, 7 Ad. &
John D. Lawson.
(To be continued.)
RECENT ENGLISH DECISIONS.
House of Lords.
BENJAMIN SCARP, Appellant, v. ALFRED GEORGE JARDINE,
A firm of two partners dissolved ; one retired and the other carried on the busi-
ness with a new partner under the same style. A customer of the old firm, sold
and delivered goods to the new firm after the change, but without notice of it.
After receiving notice he sued the new firm for the price of the goods, and upon
their bankruptcy, proved against their estate, and afterwards brought an action for
the price against the late partner : Held, reversing the decision of the Court of
Appeal, that the liability of the late partner was a liability by estoppel only, and
not jointly with the members of the new firm ; that the customer might, at bis
option, have sued the late partner or the members of the new firm, but could not sue
all three together ; and that having elected to sue the new firm, he could not after-
wards sue the late partner.
SCARF v. JARDINE. 365
Appeal from a judgment of the Court of Appeal.
The action was brought by the respondent against the appellant
for the price of goods sold in January and delivered in February
1878, to a firm trading under the name of W. H. Rogers & Co.,
of which firm the appellant was a member until July 1877. On the
trial before Denman, J., at Guildhall, on the 30th of May 1879,
the facts were proved which are stated in the judgment of the
Lord Chancellor, and it was agreed that the only question to be
submitted to the jury should be the date on which the respondent
first received notice of the appellant's retirement from the firm,
and that all the other questions arising in the action should be
tried by Denman, J., without a jury. The jury found that the
respondent first received notice on the 25th of February 1878,
after the goods had been delivered. Denman, J., gave judgment
for the appellant with costs. The Court of Appeal [Lord Coler-
idge, C. J., and Brett and Baggallay, L. JJ., doubting],
reversed this and gave judgment for the respondent for 45?. 2s. Zd.
Forbes, Q. C, and Gf. E. S. Fryer, for the appellant.
Finlay, Q. C, and 0. A. Russell, for the respondent.
Lord Selborne, L. C. — My lords, the facts in the case are few
and simple, but they raise a question which may be of some general
importance, and which seems, from what has been stated at the
bar, to be as yet undetermined by authority.
There was a firm carrying on business, under the name of W.
H. Rogers & Co., in Manchester, with which the plaintiff, Mr.
Jardine, had dealings. It consisted at first of two partners, the
defendant, Mr. Scarf, and Mr. "W. H. Rogers. On the 27th of
July 1877, those two persons dissolved the partnership between
them, and another person named Beech, joined Mr. Rogers, and
they carried on the same business, under the same name and at
the same place, from that time forward. Of this, the plaintiff,
Mr. Jardine, knew nothing until the 25th of February 1878. In
the meantime, in January 1878, goods were ordered from him on
behalf of the firm carrying on business under the name of W. H.
Rogers & Co. According to the ordinary course of business —
which, I presume, was the same as had prevailed before the disso-
366 SCARF v. JARDINE.
lution of partnership in the previous month of July — goods were
ordered of the plaintiff, and were delivered by him in February
1878, at the place of business of the firm. At the time when they
were ordered, and at the time when they were delivered, he was
ignorant of the dissolution of partnership, which had, in fact, taken
place, and of the fact that the business was then being carried on,
not by Mr. Scarf and Mr. Rogers, but by Mr. Rogers and Mr.
Beech. He became aware of those facts upon the 25th of Feb-
ruary 1878, on receiving a circular, dated on the 21st of the same
month of February, by which notice was given to him, and by
which the date of the dissolution of partnership was mentioned as
having taken place-on the 27th of July 1877 ; and it was at the
same time stated that all debts owing to or by the old firm would
be received and paid by Mr. Rogers alone, who would continue to
carry on the business as theretofore, in partnership with Mr.
Beech, under the same style and firm.
The plaintiff afterwards supplied other goods to the new firm.
He made no break in the accounts in his books. He rendered an
account consisting of the old and new debts — by " the old," I
mean the debt which had been incurred before he became aware
of the dissolution of partnership; by "the new," I mean that
which had been incurred afterwards — he rendered that account to
the new firm. He had some correspondence with them, looking
to them as the persons from whom he might expect payment of the
whole of the demand ; and they, on the other hand, replied in the
correspondence as being prepared to liquidate the debt ; they made
some payment on account, and they gave a check for the balance
on the 22d of July 1878, which was post-dated a week. That
check, when presented, was dishonored ; and on the 7th of August
1878, the plaintiff commenced an action against Rogers and Beech
for the balance, which included the present demand ; that is to
say, included the demand for the goods which had been ordered in
January and supplied in February, before notice of the dissolution
of the partnership. That action was stopped, not by any discon-
tinuance on the plaintiff 's part, but by the failure of the new firm,
which went into liquidation on the 16th of August 1878. Under
this liquidation, the plaintiff proved as a creditor of the new firm,
by an affidavit in which he swore that Rogers and Beech were
justly and truly indebted to him in the sum of 125Z. 19s. Id., for
SCARP v. JAEDINE. 367
goods sold and delivered by him to Rogers and Beech, that sum
including the goods in question.
Your lordships, I think, must take it upon the facts as they
appear, that no objection was made to that proof; that it was
never retracted ; that it was admitted ; and although it does not
appear upon proceedings that a dividend has been paid under it,
yet, at all events, for anything that your lordships know to the
contrary, that may be the case, or may be the case hereafter.
Now, after the liquidation and after the proof, the present action
was brought by the plaintiff against Mr. Scarf, who, in point of
fact, had ceased to be a partner in July 1877 ; who, in point of
fact, had given no authority to order the goods in question upon
his credit, and who, as between himself and the persons who did
order the goods, was at the time when they were supplied a
stranger to the business. On the other hand, the persons who
actually ordered these goods, and to whom they were sup-
plied, were Rogers and Beech. They were the persons alone
interested in the business, and they were undoubtedly, upon,* ordi-
nary principles, liable for what they so ordered. The defendant
also might be held liable — about that there can be no doubt ;
because the principle of law which is stated in Lindley on Partner-
ship, vol. 1, p. 429, 3d ed., is incontrovertible, namely, that
" where an ostensible partner retires, or when a partnership
between several known partners is dissolved, those who dealt with
the firm before a change took place, are entitled to assume, until
they have notice to the contrary, that no change has occurred ;"
and the principle on which they are entitled to assume it is that
of the estoppel of a person who has accredited another as his
known agent from denying that agency at a subsequent time as
against the persons to whom he has accredited him, by reason of
any secret revocation. Of course, in partnership there is agency,
one partner is agent for another, and in the case of those who,
under the direction of the partners for the time being, carry on the
business according to the ordinary course, where a man has estab-
lished such an agency, and has held it out to others, they have a
right to assume that it continues until they have notice to the
There was, therefore, in this undoubtedly a state of circum-
stances which would have entitled the plaintiff, if he had thought
fit, to hold Mr. Scarf liable, the credit being given to him and to
368 SCARF o. JARDINE.
Rogers, there being no knowledge on the part of the plaintiff of
the dissolution of partnership ; no knowledge of any revocation of
the agency at the time when the goods were delivered. On the
other hand, if you look not to the estoppel but to the fact, the plain-
tiff was entitled to hold the persons who actually gave the order
and received the goods, and were interested in the profit and loss
of the firm which ordered them, liable to him ; those persons being
not Scarf, Rogers and Beech, or Scarf and Rogers, but Rogers
and Beech alone.
Now it appears to me that the real question which your lordships
have to determine, is not as it was treated in the courts below — in,
I think, both courts below — namely, the question of what is called
"novation ;" but it is this : whether in that state of circumstances
there was a concurrent joint liability of the three persons, Scarf,
Rogers and Beech, upon the principles which I have stated ; or
whether the plaintiff had a right to make his choice whether he
would sue those who were liable by estoppel, or sue those who
were liable upon facts. Put it as I can I am unable to understand
how there could have been a joint liability of the three. The two
principles are not capable of being brought into play together ; you
cannot at once rely upon estoppel and set up facts ; and if the
estoppel makes A. and B. liable, and the facts make B. and C.
liable, neither the estoppel nor the facts, nor any combination of
the two can possibly make A. B. and G. all liable jointly.
Therefore it appears to me that if the plaintiff chose to go
upon the facts, and to make the persons who actually ordered and
got the benefit of the goods his debtors (which he had a plain and
certain right to do), he entirely disavowed the estoppel and could
no longer set it up. If, on the other hand, he chose to go upon
the estoppel, then Beech, being a stranger to the liability upon
that footing, he could only sue Scarf and Rogers. One way of
testing it would be by inquiring what was the rule under the old
system of pleading. If at that time Scarf and Rogers had been
sued, could they have pleaded in abatement that Beech ought also
to be joined as being also liable ; I think most clearly they could
not. And upon the other hand, if Rogers and Beech had been
sued, still more impossible would it have been for them to plead in
abatement that Scarf ought also to be joined, for he was neither a
partner when the goods were ordered, nor as between him and
themselves could any liability possibly have attached to him.
SCARF v. JARDINE. 369
It seems to me, therefore, that the plaintiff was necessarily put
to his election. He might hold either Rogers and Scarf, or
Rogers and Beech, liable ; he could not hold Rogers, Scarf and
Beech all liable together. That makes it unnecessary for me to
say much upon the question of novation, except that if your lord-
ships should differ from the Court of Appeal in this case, you will
have the satisfaction of feeling that you do so on grounds which do
not seem to have been clearly or fully presented, if they were
presented at all, to the Court of Appeal. In the court of first
instance the case was treated really as one of what is called "nova-
tion," which, as I understand it, means this — the term being
derived from the civil law — that there being a contract in exist-
ence, some new contract is substituted for it, either between the
same parties (for that might be) or between different parties ; the
consideration mutually being the discharge of the old contract.
A common instance of it in partnership cases is where, upon the
dissolution of a partnership the persons who are going to continue
in business agree and undertake, as between themselves and the
retiring partner, that they will assume and discharge the whole
liabilities of the business, usually taking over, the assets ; and if in
that case they give notice of that arrangement to a creditor, and
ask for his accession to it, there becomes a contract between the
creditor who accedes and the new firm, to the effect that he will
accept their liability instead of the old liability, and on the other
hand that they promise to pay him for that consideration.
Now if this case had rested upon that ground (on which it
appears to have been put in the court of first instance), I could
not myself have agreed in the decision at which the court of first
instance arrived ; because there is really only one act done upon
which a serious argument, as it seems to me, could be found in
favor of novation, if the circumstances had required that the case
should be put upon that ground. I mean the giving of the check,
which I have already mentioned, on the 22d of July 1878, by the
new firm. Down to that time it was, as it seems to me, merely in
the natural and ordinary course of things, that when the notice of
dissolution referred to Mr. Rogers (who was continuing to carry
on the business of that firm with Beech), as the person who would
receive and pay all debts owing to or by the old firm, either Mr.
Rogers or his firm should act in the liquidation of the affairs and
debts of the old concern ; and the mere corresponding with them,
Vol. XXXI.— 47
370 SCAEF v. JARDINE.
the mere sending in the accounts to them, would not, as it seems
to me, make Beech liable unless he did something to make him-
self liable beyond carrying on that kind of correspondence. Then,
upon the other hand, is there sufficient evidence of the intention
which would be necessary on the part of the plaintiff to relinquish
these original debtors ? The fact of this check being given, which
as I have said is the only thing which can be relied upon as
showing that Beech was willing to make himself liable, is perfectly
consistent with the plaintiff's not relinquishing the original
debtors. If it results in payment he is perfectly entitled to take
it. If it does not result in payment it will not fulfil its original
object. It did not result in payment and the action followed.
The proof in bankruptcy afterwards being in invitas, though it
might be some evidence of the intention of the plaintiff to get what
he could out of Rogers and Beech, yet certainly would be no
evidence of any accession on the part of Beech to the liability,
which was not upon him at all.
I therefore should not have differed from the opinion of the
Court of Appeal if I had thought (as the Court of Appeal seems to
have treated it) that the case depended upon what is called the doc-
trine of novation. I am inclined to say that the facts which have
taken place were susceptible of an interpretation consistent with
an intention on the part of the plaintiff to retain his original
debtors, at all events at the time of action brought, and that on
the other hand there was nothing to make Beech a debtor if he had
not been so before. But as Beech was really a debtor, the whole
doctrine of novation disappears from the case, and the question
resolves itself into that which I originally stated, namely, whether
there was an intention on the part of the plaintiff to hold the three
persons liable or only two, and if two, whether it is possible, after
choosing to hold those who actually gave the order and received
the goods liable, and proceeding against them as debtors in such a
way as to amount to a distinct election to take their liability, to
retract that and to fall back upon the liability which, on a different
principle, might have been asserted against the other two, that is
to say, against Scarf and Rogers, to the exclusion of Beech. I
think that the plaintiff was bound by his election, and that after
approbating the liability according to the facts, and taking as his
debtors those who had actually given the order, he could not, when
it suited his convenience, retract it, reprobate it, and go back upon
SCARF v. JARDINE. 371
the liability, by estoppel, of the man who never gave the order
Then did the plaintiff do that which was, and ought to be held
as, an election of liability. I think that he did, with full knowl-
edge of all the facts, from the 25th of February. He not only
carried on the correspondence to which I have referred — which
might have been entirely consistent with his reserving his right to
elect ; he not only received the check — upon which I am disposed
to make the observation that taking it would not have been a con-
clusive election — but he brought his action against Rogers and
Beech ; and not only did he bring his action, but when the action
was stopped by the liquidation, he carried in his proof, swearing
that they were justly and truly indebted to him for the goods as
sold and delivered by him to them. Rogers and Beech were in
point of fact the debtors, and he had the benefit of that, which
really (without going into any technical distinctions), for this pur-
pose appears to me to be a sufficient ground of judgment. I do
not think it necessary to go into any of the cases which have been
mentioned, because I think that the principle is perfectly distinct.
The case, which was relied upon by the respondent, of Curtis v.
Williamson, Law Rep., 10 Q. B. 57, simply held the mere act of
making and filing in bankruptcy an affidavit of the kind which
was made was not one as to which the party would have no locus
penitentice under any circumstances where he had been desirous,
when he had fully considered the matter, of withdrawing it before
it was put upon file ; and nothing was done, so far as appears, after
it was put upon the file. There was nothing to bind him to his
election except that inadvertent and (at the time when it was done)
unintentional act of his agent; and the court were quite right
in holding that that ought not to be regarded as an election by
I need not refer particularly to the facts of Bilborough v.
Holmes, 5 Ch. D. 255, but a proof under circumstances similar to
the present was held, upon the principle of election, to bind the
party who made it. In Bottomley v. Nuttall, 5 C. B. (N. S.)
122 ; 28 L. J. (C. P.) 110, an acceptance had been given which
was evidence of a successive obligation, and proof of it would by
no means extinguish or destroy any right which the party might
have upon the original debt and the original consideration.
There is, therefore, as frankly admitted at the bar, no direct
SCAJIF v. JARDINE.
authority upon this point. Your lordships are obliged to deter-
mine it upon principle; and on principle I think your lord-
ships ought to hold that the plaintiff -was put to his election, that
he made it when he brought the action and proved in the liquida-
tion, and that he cannot now, consistently with the election which
he has made, hold Scarf liable. I therefore move your lordships,
that the order under appeal be reversed, which will have the effect
of restoring the judgment of the court of first instance ; and that
the defendant (the appellant here) have his cost in the Court of
Appeal and in this House.
Lords Blackburn, Watson and Bramwell, also delivered
With the exception of the cases of the
death of a partner, the bankruptcy of
the firm, and the retirement of a dor-
mant partner, the general rule is that
the agency of each partner, and his con-
sequent power to bind his copartners
within the scope of the copartnership
business, can only be effectually deter-
mined by notice of its revocation. If a
partnership is dissolved, or one of the
known members retires from the firm,
until the dissolution or retirement is
duly notified, the power of each to bind
the rest remains in full force, although
as between the partners themselves a
dissolution or retirement is a revocation
of the authority of each to act for the
others : 1 Lind. on Part. (Ewell's ed.)
*404-407, and notes, where a large
collection of cases will be found. So, it
has been held, that a partner who re-
tires without giving sufficient notice, is
liable for torts committed subsequently
to his retirement by his late copartners or
their agents : Stahtes v. Eley, 1 Car. &
P. 614. Even where a partner has
retired and notified his retirement, if he
nevertheless continues to hold himself
out as a partner, he will continue liable
as a member of the firm. A firm, not-
withstanding its dissolution, is also gen-
erally considered as existing so far as
may be necessary for the winding up of
its business : 1 Lind. on Part. *409-41 1 .
As to the notice of the dissolution, pub-
lic notice by advertisement is sufficient
both as against all who can be proved
to have seen it, and as to all who have
had no dealings with the old firm,
whether they saw it or not ; but as to
old customers of the firm actual notice is
requisite. This applies only to ostensi-
ble partners, for when a dormant partner
retires, he need give no notice of his
retirement in order to relieve himself
from liability as to acts done after his
retirement. As to persons, however,
having knowledge that he is a partner,
he owes the same duty as to giving
notice as if he were an ostensible part-
ner. See, generally, 1 Lind. on Part.
*405-417, and notes.
In the principal case there was no
doubt as to the liability of the new
firm, for the reason that the contract
was, in fact, made with it. Had the
remedy been first sought against the
old firm, there could also have been, on
well-settled principles, no doubt of the
liability of the retiring member of that
firm. The point actually decided, that
after having elected to hold the new
firm, the creditor could not also pursue
the retiring member, is both new and
important. This question does not ap-
pear ever to have been decided in Eng-
CARTON & CO. v. ILLINOIS CENT. R. R. CO. 373
land prior to this case ; and, from snch C, are, on account of want of space,
examination as we have been able to omitted] — are so clear and conclusive
make, no case involving the point has as to render the citation of authorities
ever been reported in this country. The almost superfluous, and there would
reasons advanced, however, by the seem to be no reasonable doubt as to
learned judges, whose opinions are re- the correctness of their judgment,
ported — [the opinions of Lords Black- Mabshail D. Ewelx.
burn, "Watson and Bramwell, who Chicago,
concurred with Lord Sblborne, L.
RECENT AMERICAN DECISIONS.
Supreme Court of Iowa.
CARTON & CO. v. ILLINOIS CENTRAL RAILROAD CO.
An act of the state legislature, whose object and purpose is to control and regulate
the shipment of freight to points in other states, is in violation of article 1, sect. 8,
of the Constitution of the United States, as being legislation on interstate commerce,
a subject which is in its nature national, and requiring the exclusive legislation of
An interstate contract of shipment, entered into by a common carrier, is an
entire contract, and the laws of the state wherein it is made, so far as they attempt
to regulate interstate commerce, do not enter into it as a part of the contract, being
repugnant to the Federal Constitution [Beck, J., dissenting].
A contract is subject to the laws of the state wherein it is made and which are
A state may regulate charges on shipments of goods, by statutes not in conflict
with the Constitution of the United States as regulations of commerce, and in the
absence of any legislation by Congress upon the subject, such laws cannot be regarded
as an encroachment on the anthority of the general government.
Such regulations of commerce only as impose burdens and restrictions are for-
bidden to the state by the Constitution of the United States, but laws which aid in
securing expeditious and cheap transportation, and which remove burdens, impedi-
ments and restrictions imposed on commerce by common carriers through unneces-
sary delays, and by their unreasonable and unjust exactions and discriminating
charges, are not regulations of commerce within the contemplation of the Constitution
of the United States.
Appeal from Hardin Circuit Court.
This is an action to recover certain alleged excessive freight
charges paid by the plaintiff to the defendant for transporting
grain from Ackley, Iowa, to Chicago, Illinois. The cause was
tried in the court below without a jury, and upon an agreement as